Chapter III: Part II (2)

The important point which it is necessary to emphasize in this connection is the fact that the gastald held his tenure, not from the _dux_ as his subordinate, but from the king in person, and for this reason can more fitly be compared with the later count than with the _dux_ of the Lombards. Consequently it is in the matter of tenure that I think is to be found the difference in power between the two officers. In addition to his official authority, the _dux_ was possessed of a power and an influence entirely his own, derived quite as much from the number of his vassals and his position in the _civitas_ as from the grant he received from the king. At home he was a powerful lord, and though he, of course, owed fealty and service to the king, he was by no means a king's servant, like his successor the Carlovingian count. The gastald, on the other hand, was eminently a servant of the central power; and whether or not he was engaged exclusively in looking after the fiscal interests of the masters who employed him, he had no power and no influence except such as he derived from the source of his authority. He was a king's minister and nothing more, and we can easily appreciate that the amount of power he was enabled to exercise could never exceed the amount of influence in local affairs possessed at any particular time by the central government, whose representative he was.

But the very nature of the source from which the power of his office is derived is what connects it vitally with the subject of our enquiry. We have seen the _dux_ as head--in the earliest times almost independent head--of the whole _civitas_, including rural and city jurisdiction. We have seen him as an official, depending from the king, it is true, and holding the king's _placita_ and executing the law, but also holding _placita_ of his own; appearing as a powerful local lord, and exercising almost arbitrary power in the regulation and the distribution of the public property of the commonwealth over which he ruled; in fact, a descendant of the old _duces_ of the Lombard barbarian host, who, perhaps, even antedating the royal office, held their power and their position as princes and chosen leaders of the people, rather than as appointees or dependents of any higher authority. In the gastald, on the other hand, we have an official of an entirely different type--one not belonging to a powerful class of lords or leaders which traces its origin to the spontaneous choice of the people or army, but one who gets his appointment at the will and in the interests of the central government, and is commissioned to exercise certain functions of the administration as an assistant to, perhaps even as a check on, the power of the local head.

Such an official was naturally located at the place where the district courts held their sessions, and where the fiscal duties which he especially had in charge were most easily executed. As we have seen in the case of the _dux_, convenience points to the _urbs_ of each _civitas_ as a natural centre, and consequently here again we find the office of gastald as another agent in bringing the municipal division into prominence; but doing this, we must always remember, simply from the fact of convenience or fitness, and not in any sense as a matter of constitutional necessity. Like that of the _dux_, the jurisdiction of the gastald was exercised over the remotest farm of the _civitas_ as much as over the palace in the city: _de jure_, the city gained nothing by the circumstance of its being the centre of the administration of any office; but, _de facto_, the holding of such a position can easily be seen to have been an important element in its growth and development.

This fact is even of greater importance in the case of the gastald than in that of the _dux_, because, on account of the elimination of the character of local ruler, which was indissolubly attached to the office of the latter, the gastald brought local affairs into direct relation with other parts of the social system of the kingdom, especially connecting them with the king or centre of the whole. Such a connection, as may be inferred from what has just been said, while legally true, of course, of the whole _civitas_, had practically the effect of bringing the cities chiefly into relation with the rest of the Lombard constitution; and, consequently, some writers point to the office of gastald as the connecting link between municipal life and the new state life of the Teutonic system. This statement seems to me to be true except in so far as it makes the gastald the only connecting link. For we have already seen the _dux_ holding the same relation, only in a less direct manner, owing to the intrusion of other interests belonging to his position; and we shall shortly have to consider the _scabinus_, another local officer, who, under Carlovingian rule, accomplished even more in this direction than the gastald. I do not wish to fail in appreciation of the important influence of this office in the development of the slowly growing idea of individuality in the cities of Lombardy, only to point out that it was not the only "connecting link" between the municipal units and the state as a whole.

In passing to a brief characterization of a few of the subordinate officers, I must not omit to mention the fact that the gastald had also certain military functions attached to his office. When called upon by the king he took command in the army, together with the minor officers who were under him in his jurisdiction, such as the _sculdahis, saltarius_,[44] etc. We have confirmation of this in the constitution "promotionis exercitus" of Lewis II.,[45] which says "ut nullum ab expeditione aut Comes aut Gastald, vel Ministri eorum excusatum habeant"; and in the life of Gregory II., Anastasius Bibliotecharius[46] tells that at the overthrow of the _castrum_ of Cumae with the help of that pope, "Langobardos pene trecentos cum eorum Gastaldione interfecerunt." In military affairs the command held by the gastald seems to have been lower than that of the _dux_, the leader of all the troops furnished by the _civitas_. A right of appeal to the _dux_ existed for the _exercitalis_ who was oppressed by the gastald, as shown by the twenty-fourth law of Rhotaris,[47] which says: "Si Gastaldius exercitalem suum contra rationem molestaverit, _Dux_ eum soletur." In a case of oppression by the _dux_, the gastald, on the other hand, could bring the matter before the king.

Before considering the changes introduced by the Carlovingian rule, let us cast a hasty glance at a few of the minor officers who acted as subordinates of the _judex_ in administering the affairs of the _civitas_. As their relations to the urban portion of the Lombard kingdom, which is the special object of our study, were either slight in themselves or else so closely connected with those of their superiors as not to merit any particular description, I will merely mention the names of a few of them and indicate their duties. The officer who came next in rank to the _judex_, and who, in a subordinate capacity, assisted him especially in administering the judicial affairs of the _civitas_, was in Lombard times called the _sculdahis_, and in Carlovingian times the _centenarius_. Under him were the _saltarius_ and the _decanus_. The _sculdahis_ acted as a local officer under the _judex_, having limited judicial, police and military powers. His jurisdiction was confined to the small fortified towns and villages of the _civitas_, where he administered justice and collected fines, forfeitures, etc., in much the same manner as did the _judex_ in the largest town of the _civitas_; his judgments, however, were not final, but always subject to appeal to a higher authority: "Si vero talis causa fuerit, quod ipse Sculdahis minime deliberare possit, dirigat ambas partes ad judicem suum."[48] There were several _sculdahis_ in one _judiciaria_, and cases were often tried before more than one,[49] though each of the smaller local units seems to have had such an officer. Paulus Diaconus[50] speaks of "elector loci illius, quem sculdahis lingua propria dicunt, vir nobilis," etc.

These rural divisions seem sometimes to have been called _sculdascia_, for we have a diploma of Berengar I., of the year 918, given to the monastery of Sta. Maria dell' Organo,[51] where is mentioned "pratum juris imperii nostri pertinens de Comitatu Veronensi, de Sculdascia videlicet, que Fluvium dicitur"; and in a document published by Ughelli,[52] in speaking of the bishops of Belluno, "Sculdascia Belluni" is used. In Frankish times the _centenarius_ held the same position as the _sculdahis_ of the Lombards: his jurisdiction was similarly limited to minor offences; all cases involving capital punishment, loss of liberty, or delivering of _res mancipii_, being handed over to the count's court according to the legislation of Charlemagne.[53] The _decani_ and _saltarii_ were subordinates of the _centenarii_ and _sculdahis_. They both presided over smaller local divisions than the _sculdascia_, and acted as deputies. In the laws of Liutprand,[54] speaking of a runaway slave, we are told that "si in alia judiciaria inventus fuerit, tunc decanus aut saltarius, qui in loco ordinatus fuerit, comprehendere eum debeat et ad sculdahis suum perducat, et ipse sculdahis judici suo consignet." The _saltarius_ seems to have been originally a sort of guardian of forests, "custos saltuum"[55] or "silvanus";[56] and the name of the _decanus_, like the Frankish _centenarius_, is a survival of the old decimal division of the army and people. These minor officers, as well as other subalterns of the _judex_, are often met with under the common name of _actionarii_, which includes also the different sorts of _exactores_, _adores_, _advocati_, and all the lesser officials of the _fiscus_.

In the course of this investigation I have already referred to, and in a certain measure characterized, the changes introduced into the Lombard system of government consequent on the kingdom being absorbed into the great empire of Charlemagne. I have said that, owing to the similarity of institutions between the Franks and the Lombards, the changes made consisted rather in differences in the manner of enforcing the control of the central power than in any alteration in the institutional life of the people, but that there were certain exceptions to this general rule, which, in their mode of operation, though not in the intention of their author, materially affected, indeed greatly accelerated, the growth of individual life among the cities. We must now consider the nature of these exceptions.

Under the Lombard system we have seen the administrative unit of the state to be the _civitas_, with its administrative head, the _dux_, at different times enjoying a greater or less degree of independence from control of the central power. We have seen the _dux_ lord as well as judge in his own jurisdiction, and standing as the successor of the military leader chosen by the people, instead of holding the position of king's servant; this place being more properly filled by the gastald, who cared for the fiscal interests of the central power, whose appointee he was. Such a form of government, it can be readily seen, left no room for any strong development of the principle of centralization, and no scope for the exercise of any decided power or even of general supervision by the central authority. The heads of the _civitates_ were the king's _judices_, it is true, and assembled to assist him in judgments at his general _placita_ in the March of each year; but they bear the character also of local lords of no mean importance, and in some cases possessed of no inconsiderable amount of power. Such a degree of individual influence--perhaps I should exaggerate if I called it individual independence--was, however, little suited to the idea of a universal centralized empire, which was the forming principle of the government of Charlemagne. While recognizing the necessity of retaining the fundamental institution of a division of the state into _civitates_, and of governing it by means of the heads of these divisions, he wished to eliminate from these officers all the characteristics of local magnates, and to reduce them to the more easily controlled position of servants, and dependents of the king. This object he accomplished most satisfactorily by changing the dukes or local lords into counts or king's men, by appointing a Count of the Palace for Italy, and by extending to that kingdom the perfectly organized system of central control by means of the _Missi Dominici_, with the workings of which in the other parts of his great empire the student of history is too well acquainted to need any description here.

The immediate changes in the life of the people consequent on the introduction of this system were not considerable, if we except a great improvement in public order and a marked advance in the equitable administration of justice; but it needs no great foresight to see that the ultimate effects on the position held by the municipal units in the community could not fail to be important and far-reaching. The new officer, the count, stripped of all the importance that his predecessor, the duke, had enjoyed as lord of the country over which he ruled, was placed in each city to govern, in the king's name, it and its _territorium_. As long as the empire of Charlemagne retained its integrity, and as long as the reins of central government were held by a strong hand and the control it exercised was felt to be positive and real, the change in the character of the local governor was of little moment; but as soon as the power of the central government weakened--during the inglorious reigns of the immediate successors of the great emperor--its hold on the administration of the local units slackened immediately; and in proportion as the vitality of the new central control diminishes, we see appearing the effects which must always result when the strong hand of an active central power is removed from a system of administration which had been based on the exercise of such a power. These effects are the increased importance--I may now say the increased independence--of the local units; of these local units themselves as distinguished from the heads who rule over them.

The change had made these units more organic parts of the state than they had ever been before: we have seen them first made prominent by being the seats of the rulers of the _civitas_, and now we are to see them gain a more significant advance by coming into relation with the head of the state directly, instead of through the personal power of their lord. For the local ruler has yielded his individual pre-eminence to the central government; and when this fails to maintain its authority, in any community whose inhabitants are capable of fostering the seeds of independence once sown, it is difficult if not impossible for a successor to repossess himself of the privileges which have been forfeited. In any state where the seat of central authority is distant or its power only exercised feebly and at intervals, the local units secure much greater independence and importance, through the very necessity of performing many functions left unheeded by the ruler of all; and if the people are self-reliant in character, they will in time develop a sort of self-government which, although it would not at first think of questioning the theoretical right and overlordship of the central power, will eventually brook but little interference with its modes of procedure and with its exercise of functions, which the lapse of time has transformed from enforced duties into jealously guarded privileges.

This is the keynote of the later history of the Italian cities. This it was, and not any real lack of patriotism, which made them choose a German emperor instead of an Italian king. There was no room at that time for the idea of Italian unity, as we now understand it: the nature of the people alone would have rendered such a thing impossible, even if we leave out of account the fact that Italy was the meeting-ground of the two great powers of the mediaeval world, the Pope and the Emperor. Italy then must have had two masters, or have been the slave of one. The same spirit of civic independence which caused the development of Ancient Greece by preventing the universal rule of one power, caused the Italians, under different conditions, to pit one master against another to attain the same end. Even Liutprand, the old historian of the tenth century, recognized this. In the first book of his "Historia" he says: "The Italians wish always to serve two masters, in order to restrain one by means of the terror with which the other inspires him."[57] By means of holding in their hands the balance of power they hoped to rule their rulers; and to attain this object was the only reason which ever prompted the cities to unite with any degree of harmony. Local independence was what they aimed at, and their shrewdness showed them the only possible means in that age of securing it.

These results could hardly have been attained if society had remained such that the prominence of the local divisions was dependent on the prominence of the respective heads of these divisions; but the character of their local rulers once changed, and their powers in a great measure absorbed by the act of a strong central power, when that power fell to pieces it was much easier for the local divisions, as such, to increase their independence, and to utilize the advance they had made, by means of their more direct relation to the central power, to gain a position which they would enjoy in spite of the efforts alike of that power and of their old rulers. Such a position would not be reached except by means of great struggles and by passing through a period of great disintegration and of fierce internal strife between opposing factions, such as in the history of the Italian communes is represented by the dark period between the fall of the last of the Carlovingians and the election of the first German emperor as king of Italy; but once attained, the character of the people who accomplished it would ensure its permanence, as long as they retained those principles of independence which had made them victorious in the struggle. After this short discussion, in which we have traced the ultimate effects of the action of Charlemagne in changing the dukes into counts, let us look at another feature in the field of city government introduced by him, the new office of the _scabinus_ or city judge.

According to the theory of judicial procedure among the Teutonic nations, judgment in criminal cases was given in the open court or _placitum_, where, besides the regular judges, all or any of the freemen within its jurisdiction were supposed to concur in the judgment and sentence. How far this method of arriving at judicial decisions was carried out in practice depended largely on custom and other local influences, and consequently varied greatly in different countries and with different nations. I do not propose to enter into the discussion[58] of the existence of these "judicators"[59] in Lombardy in the eighth century, but will only say that it is certain that before the Frankish conquest there did not exist a class of men whose business it was to assist the judge in disposing of cases. If through ignorance of the law or for other reasons he was unable to come to a decision, "si vero talis causa fuit, quod ipse ... deliberare minime possit,"[60] he could call some of the freemen to assist him: "advocis [advocet] alios ... qui sciunt judicare,"[61] etc., but this seems, in later times at any rate, to have been a privilege to be used at discretion, and the persons summoned were not regularly appointed officers of the court. The Lombard codes are silent with regard to these indicators; but Savigny,[62] in his argument to prove their existence, claims that mention is made of them in two decisions of Liutprand of the years 715 and 716, and brings as additional evidence a _placitum_ of 751[63] in which Lupo, duke of Spoleto, gives judgment "una cum judicibus nostris ... vel aliis pluribus astantibus," etc. It is of more importance for us, however, to determine the reasons for the introduction into Italy by Charlemagne of the new office of the _scabinus_, than to lose ourselves in a complicated discussion of the theoretical predecessors of these officers.

The introduction of this new feature into city government seems to have been the result of an attempt to correct certain abuses in the exercise of power by the duke or head of the courts of the _civitas_. The duke had the right, as we know, to summon all the freemen in his jurisdiction to his _placita_, and to fine them according to the law if they failed to answer his summons. The fines collected in this manner formed a substantial part of the revenues of the _judex_ imposing them, and consequently arose the abuse, which seems to have been a great cause of complaint in the eighth century, that the freemen were summoned to attend _placita_ at frequent intervals during the year, when there was no business of any importance to transact, and when the sole object of the summons was to furnish an excuse for imposing the fine. An attempt to remedy this injustice was made when the number of _placita_ which any one _judex_ could hold during the year was limited by law to three,[64] and the dates for these definitely determined. But the abuse does not seem to have been satisfactorily corrected till the time when Charlemagne formally substituted for the body of the freemen, who in theory were supposed to attend the _placita_ and assist in the judgments, a limited number of men who, as regularly constituted judges, either assisted the _judices_ or made judgments of their own, as the case might be. These officers were the _scabini_, whose position we are now investigating.

All of the best authorities agree that no authentic allusion to the office in Italy is to be found prior to the establishment of Frankish rule. The word _scavinus_ or _scabinus_ sometimes occurs, but in every case the document containing it has been proved spurious on other grounds. For instance, Brunetti[65] publishes a donation of the bishop Speciosus of Florence, to the monastery of the cathedral, purporting to belong to the year 724, in which a certain "Alfuso scavino" is mentioned; but it has been proved that the monastery was only founded in the year 760, and though it may, at a later date, have received the donation, the significancy of the use of the term vanishes. The first authenticated use of the name of the new judge seems to be in a _placitum_ of Charlemagne of the year 781.[66] In this the parties to a suit are mentioned as having already appeared before the "Comitem et suos Escapinios." Eight years later, in a _Praeceptum_ of Charlemagne,[67] commission is given to the _comes_ Tentmann "superque vicarios et Scabinos, quos sub se habet, diligenter inquirat."

Now that we have indicated the origin and noted the first appearance of the new officer, let us examine his position and his duties. I am much more willing to allow to the _scabinus_ the title of "city officer," than to the _dux_ or even the count. We have seen the latter as one of the important connecting links joining the city to the state, bringing the city into relationship with the constitution of the kingdom and making it a part of it; but we have been unwilling to call the count or _dux_ the _legal_ head of the city, as such, that is to allow him the title of the first city officer. But with the _scabinus_ the case is different. His mode of appointment, and the character of the functions he performed, ally him with the city proper and with city people. His duties and his interests were more confined to the city than those of any of the other judges, and when he accompanies the count to the general _placita_ of the king, he seems to go in the capacity of a representative of the city, and more in the character of a city magistrate than any officer we have yet considered. His duties were almost entirely of a judicial character, and his powers seem to have been as broad in their extent as those of the other judges. That he had the power of imposing capital punishment, and that the other officers of the law could not change but only execute his orders, appears from the following passage:[68] "postquam Scabini eum [latronem] adjudicaverint, non est licentia vel Vicarii ei vitam concedere." Muratori[69] maintains that he also had the right of holding certain _placita_ of his own, and cites in proof two _placita_ of Lucca of the years 847 and 856, where we find: "Dum nos in Dei nomine Ardo, Adelperto et Gherimundo Scabini adsedentes in lucho Civitate Lucana," etc.; and "dum resedisset Gisulfus Scabinus de Vico Laceses, per jussionem Bernardi Comiti ... ubi cum ipso aderat Ausprand et Audibert Scavinis." In the first of these there is no mention whatever of the count, and in the second "Gisulfus Scabinus" acts with his associate _scabini_ "per jussionem Comiti." But even if we allow to the _scabini_ the right of holding _placita_, these must have been of a lower grade than those of the counts or of the _missi regii_; for to the _mallum_ of the latter an appeal was allowed from the judgment of the _scabini_, as we see from the law of Charlemagne,[70] which says that: "Si quis caussam judicatam repetere in mallo praesumserit ... a Scabinis, qui caussam ipsam prius judicaverint, accipiat." Generally speaking, however, it seems probable that their jurisdiction included all cases arising within the city limits, which could be dealt with in the regular _placita_ of the counts, and which were not of sufficient importance to be referred to the king in person, his representative the Count of the Palace, or his delegates the _missi regii_.

When the count went up to the general yearly _placitum_ of the king, as the representative of the _civitas_, according to the laws of Charlemagne he was to be accompanied by a certain number of the _scabini_; and these seem to have accompanied him not solely in the character of legal advisers, but also in a certain measure as representatives of the cities in which lay their jurisdiction: they are by no means what the exaggeration of Sismondi[71] calls "des magistrats populaires ... qui representaient la bourgeoisie"; but they certainly stood for the interests of the people, in a greater degree than any of the ruling powers we have as yet considered. Their number is variously stated in the laws of different kings, and their actual number seems seldom to have come up to the standard of legal requirement. Lewis the Pious requires twelve to accompany each count when summoned by the emperor: "veniat unusquisque Comes et adducat secum duodecim Scabinos";[72] but concedes that if so many could not be found in the city, their number should be filled out from the best citizens of the town: "de melioribus hominibus illius civitatis suppleat numerum duodenarium."[73] According to Charlemagne,[74] no one should come with the count to a king's _placitum_ unless he had a case to present, "qui causam suam quaerit, exceptis scabinis septem, qui ad omnia Placita esse debent." And again: "Ut nullus ad placitum banniatur ... exceptis scabineis septem, qui ad omnia Placita praeesse debent";[75] and seven seems to have been the usual number expected, and their attendance was compulsory; though sometimes only two appear, and in a few cases none at all.

Of all matters relating to this office, the one which is of most interest to us, and the one which most clearly shows the difference which was designed to exist between it and that of the other judges, was the manner in which the office was obtained. In this procedure we can trace almost distinctly that the object of the central power which established it was to secure greater justice and greater freedom to the subjects who came under its jurisdiction. The fact was recognized by the new government that the power of the local heads was too great to suit the principle of universal central control, which was the keynote of Charlemagne's system of administration, and was exercised in too arbitrary a manner; and that some check was necessary to curb the spirit and limit the independence of these local lords of the soil and the city who had little consideration for their inferiors, and who might at any time become a source of danger to their superiors. Such a check was found, in regard to the central authority, in the _missi regii_, and in reference to the general public, in the _scabini_ or city judges.

In the old Lombard constitution we have seen the gastald, chiefly, however, in the matter of judicial decisions, exercise a controlling influence on the arbitrary action of the duke; but as the power of the count varied from that of the duke, so that of the _scabinus_ differs from that of the gastald, only perhaps in a greater degree. At the time when the count assumes the place of his predecessor the duke, the _scabinus_ displaces the gastald, although he cannot be said to have assumed exactly the same position as the latter, nor to have filled it in precisely the same way. The _scabinus_ did not have, of course, any direct limiting control over the actions of the count; for any such power in the hands of a body of lesser officers would have been alike contrary to the spirit of feudalism which characterized the age, and impossible to its forms; but being the principal judicial functionaries of the district, into their hands fell most of the cases which formerly went to the _placita_ of the count; and while the wish of the great emperor, that even the meanest subject of the realm should receive impartial justice at their hands, might have failed in its effect, its fulfilment was made more sure by the method prescribed for the election of the officers whose duty it was to execute it.[76]

In describing the method by which the _scabini_ gained their office, I am in some doubt as to the proper terms to be employed. I have just made use of the word "election," but cannot let it stand without some qualification. It was not an election in the strict sense of the word as we now understand it, but it was as near an approach to a popular choice as was possible in the age in which it existed. The citizens of a municipality did not nominate and elect by their votes a popular magistrate, as some writers would have us believe; for such a proceeding would have been an anomaly in the eighth century under the rule of a Frankish emperor. But the people had a voice, and from the frequent mention of their intervention it would seem an important voice, in the selection of those who were to be their judges, and who were to assist in representing them in the royal assembly. The original appointments were made by some higher power, in most cases the _missi regii_, the direct representatives of the king; but these were made not arbitrarily, but always "cum totius populi consensu." This was the important point; it was so far a popular office that the free consent of the people was always necessary to make valid the appointment of any incumbent. According to the ideas and customs of the eighth century, such a method of procedure would represent a fairly popular election; for we know well that in the times of the greatest freedom, the Teutonic idea of a popular vote never went beyond the mere expression of assent or dissent by the assembled freemen. The initiative was always left to the king or chief who conducted the meeting, just as much as it was in the ancient assembly held on the classic plains of Troy. In a capitulary[77] of Charlemagne of the year 809 it is decreed: "ut Scabini boni et veraces cum Comite et populo elegantur et constituantur": and more specific directions are given by Lothar I. in the year 873, in case of a _scabinus_ found to be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malos scabinos invenerint ejiciant, et totius populi consensu in loco eorum bonos eligant." From this latter example we see that the _missi_ had the power of dismissal "for cause," as well as of nomination. In fact, the king and his ministers, in the interests of impartial justice, kept constant watch on the acts and judgments of the _scabini_, and a law of Lothar I. tells us that "quicumque de Scabinis deprehensus fuerit propter munera, aut propter amicitam injuste judicare" should be sent up to the king to render an account of the manner in which he had fulfilled the duties of his office.

Such then were the duties, the privileges and the restrictions of the first magistrate to whom we could venture to ascribe any of the attributes of a popular judge: a representative of the people at the assembly of their ruler; a judge of their suits and of their misdoings at home, and a check on the arbitrary power of their lord and feudal superior,--we can readily appreciate that the existence of such an officer within the city must have exercised some influence in giving to its inhabitants a greater sense of security, and consequently of importance, even if we cannot claim that in the earliest stages of municipal development it gave birth to any definite ideas of personal freedom or of municipal independence. But it can easily be seen that it formed another and an important factor in that idea whose progress we wish to trace, of a slowly growing feeling of individuality in the city as such, the municipal unit as conceived apart from the still legally recognized unit, the entire _civitas_. We have seen the count the representative of this idea as far as its actual connection with the constitution of the state was concerned, but it was the _scabinus_ who was to represent it to the consciousness of the people, and to assist them in rediscovering the lost conception of a municipal unity.

It would be incomplete to conclude this account of the various officers of government, without some mention of the position held by the bishops at this period. As it has been our duty throughout this paper to study the municipalities of Italy as only preparing to assume a position of individuality eventually leading to independence, so it is with regard to the bishops. While their social influence, as pointed out in the first part of this paper, was always notable, their political power, which formed one of the important steps in the progress of the communes towards a separate existence, has its birth at a time which is beyond the limits of this investigation. Not until the overthrow of the Carlovingian dynasty left Italy the prey of contending factions, and the crown passing quickly from hand to hand made each applicant anxious to gain the support of the more prominent electors, did the bishops obtain that legally constituted political power which, by breaking up and in many cases destroying the rule of the counts and great nobles in the cities, was the means of bridging over the wide gulf which lay between the idea of a district under the almost absolute rule of a great lord, and a civic autonomy governed by its own independent citizens. Even, however, if we are not yet to portray the bishop in a position of high political importance, we may briefly consider his social power and influence, and, as we have done with the cities themselves, indicate the steps by which he was enabled ultimately to gain such an exalted position.

The relations of the bishop to the inhabitants of the cities during the period we are considering were pretty nearly such as described in the first part of this paper. He stood forth as protector of the weak and the oppressed; as mediator between an unfortunate prisoner and an unjust judge who was seeking his private interest rather than following the spirit of impartial justice; or between a downtrodden vassal and the almost unlimited power of his feudal superior. He lessened the severity of harsh judgments, he protested the imposition of unjust fines and penalties. In very many cases he was even appointed by the king or his representatives as co-judge to assist the _judex_ or the _missus_ in hearing cases where oppression or injustice was to be feared. But it is important for us to avoid confusing this kind of jurisdiction with that which he enjoyed in the century after he had attained the power and the office of count, and had combined the religious functions of head of the diocese with the secular ones of political ruler of the city. Any judicial authority possessed by the bishop at this earlier period was not in virtue of any political position he himself held, but came to him entirely in what might be called an extraordinary manner, that is, by delegation from the king, for definite specified occasions. As an example of this extraordinary delegated jurisdiction, I will refer to a document in the Archivio of the Canons of Arezzo[79] of the year 833, relating to the judgment of a dispute between "Petrum Episcopum Arretinum et Vigilium Abatem Monasterii Sancti Antemi," situated in the territory of Chiusi, over a privilege ceded to that monastery by Lewis the Pious in 813.[80] The bishop of Arezzo gained a favorable decision from a court constituted of some _judices_, _missi_ of the emperor, and of the bishops of Florence, Volterra and Siena, Agiprandus, Petrus and Anastasius. According to the terms of the document with regard to the composition of this court, the bishops sitting in it were "directi a Hlotario magno Imperatore"; and their powers are several times referred to as being "juxta jussionem et Indiculum Domni Imperatoris." Here, as in all other similar cases, we see plainly that there is no indication of any purely personal jurisdiction.

That the influence of the bishop in affairs of state at this period was only of an individual, extra-official character can be seen also from the fact that the king considered the bishops themselves to be under his judicial jurisdiction in all secular matters, just as the lesser clergy came under the jurisdiction of the _judices_:[81] and further, that after the election to a church, the decision of the _judex_ must confirm the choice of the community in order to render it valid.[82] All disputes also between bishops and their clergy, between members of the body of clergy, and between these and members of the laity, were settled by the royal authority;[83] and what is most significant, there was a universal and freely used right of appeal for the clergy or laity from the decision of a bishop to the person of the king, who seems to have exhibited no hesitation in modifying or reversing sentences, even in matters relating to purely clerical discipline.[84]

Even in the time of the Franks, when the consideration shown to the church and its representatives was much greater than under any of the Lombard kings, we find Charlemagne,[85] on suspicion of infidelity to his government, having sent to him and retaining as prisoners the bishops "Civitatis Pisanae seu Lencanae" and Pottoni, Abbot of the monastery of Volturno; and Lewis the Pious[86] sends into exile "Ermoldo Nigello Abatis," and in the year 818 several other bishops, including Anselmus "Mediolanensis Archiepiscopus," "Wolfoldus Cremonensis" and "Theodolphus Amelianensis."[87] None of these restrictions and limitations, however, although they arose chiefly from the strong opposition always existing between the local temporal rulers of the people and their spiritual rulers, could hinder the bishops from occupying that important position of mediators and of protectors of the people which we have ascribed to them.

Turning now to a consideration of the earliest steps which may be said to have cleared the way for the political power of the bishops, we are met by a subject which, though of great interest in itself, is not sufficiently a part of this investigation for us to do more than indicate the lines of its progress. This subject is the development of the practice of giving certain immunities and privileges to churches and monasteries, adopted by the Frankish kings, faithful sons of the church, and then followed by all their royal and imperial successors. In considering the important influence exercised by these immunities on the development of the espiscopal power and the effects of this on the growth of the communes, there are two essential facts which we must always keep prominently in mind. In the first place we must remember that the granting of immunities was a question of privilege to particular individuals or ecclesiastical institutions, and not a universal grant which affected in an equal degree all the dioceses of the realm. This led to the marked differences in rank and importance which existed between the various bishoprics, and in the tenth century, when the temporal power became in many cases an adjunct to the spiritual, caused some bishops to become powerful temporal princes, while others, unable to gain this pre-eminence, remained simply spiritual heads of their respective dioceses. So in the contest between the counts and the bishops we find the latter only victorious in certain cases, and consequently having only certain of the cities under their jurisdiction; a fact which is illustrated as late as the Peace of Constance, where in the ninth article the cities are still divided into episcopal and non-episcopal cities.[88] In the second place we must keep clearly before us an important fact, the truth of which any chronological account of the development of the principle of immunity would easily demonstrate, namely, that with the advance of time and with the growth of that principle, the changes which took place in the different sorts of immunities were not simply those of degree, but essentially and principally those of _kind_.

A descendant of Charlemagne may have granted to some monastery or bishopric a greater alleviation of some of the fiscal burdens borne by it under his immediate predecessor, but a successor of Berenger when he granted a _privilegium_ did not simply perform the negative benefit of alleviating burdens; he endowed the head of the bishopric--probably in return for some service he had received at his hands or expected to receive--with the positive benefit of the political headship and possession of some city or district of a former count. I mean by this that the earlier immunities--and in these are included all given during the period we are discussing--were all of them what are termed simple or ordinary immunities; that is, those which deal with exemption--whether from burdens for which the receivers would otherwise be liable, or from jurisdiction to which they would otherwise have been subjected--of what may properly be called the private possessions of the churches concerned. They had nothing to do with the privileges of a later time, by which a power to exact burdens was granted and a positive jurisdiction over others allowed: that is, public functions bestowed rather than private rights conceded.

That a distinction of such a character was a difference of kind and not of degree is so plainly apparent that it is unnecessary to dwell longer upon it, and it only remains for us to consider briefly the chronology of some of the changes that took place. If we adhere strictly to the proper signification of the terms used, the development can be somewhat succinctly described by the simple enumeration of the three characteristic features of its progress, viz. _protection, exemption, privilege_ that is jurisdiction or temporal power; and the three periods which are covered respectively by the prominence of these ideas can be roughly stated to be: for the first, the reigns of Charlemagne and his successors down to the time of Charles the Bald--including any indication of this idea which we may find during the reigns of the last rulers of the first Lombard kingdom; for the second, the reigns of Charles the Bald, Karloman, and Charles the Fat; and for the third, the full development of the episcopal power in the tenth century, down to the period of its final decline, and the rise of actual municipal government within the communes.

It is doubtful whether immunities of any importance were granted even by the latest kings of the Lombards, before the invasion of the Franks. Under the first Lombard monarchy the church held a very subordinate position with regard to the state, and if privileges were granted to any of its members, they had attached to them no greater meaning than the simple extension to them of the _mundibrium_ of the king, such as was often allowed to private individuals; that is, they were simply grants of royal protection, and were not similar to the later grants which included both protection and privilege.[89]

With the advent of Frankish rule under Charlemagne, marked consideration immediately appears for the church and its representatives. Not alone is ample protection granted to many of the churches of the kingdom, but to it is added the important function of exemption. The greatest evil endured in those days by the ecclesiastical authorities was exactions levied on their property and oppression exercised on their dependents by the dukes and counts under whose jurisdiction lay the temporal possessions of the churches and monasteries. Consequently the aim of every bishop and of every abbot was to obtain for the possessions of his diocese or his convent an exemption more or less complete from the civil administration of the neighboring secular ruler. For a long time there was no thought in the mind of the bishop of gaining for himself the functions of temporal jurisdiction, but simply that the power of the count should be restrained with regard to church property, that is, that he should not be able to exercise his judicial control over lands belonging to the church, except by the express permission, "per licentia data," and with the concurrence of the bishop himself. This and nothing more is what is meant by all of the charters of exemption granted by the Carlovingian rulers, down to the time of Charles the Bald, when, as we shall presently see, a change was introduced.

It would be useless for me to cite examples of such charters, for their number is countless, and reference may be made to any of the great collections of mediaeval documents for confirmation of what has just been said; for during the reigns of the earlier Carlovingians, the strong reverence for the church and respect for its officers which characterized the Frankish nation from the beginning led to the extension of these privileges to much the greater number of the churches in the realm. Not all churches enjoyed such grants, and not all those accorded were of the same liberal character, but the number given and the amount of liberty to the church thereby bestowed was sufficient to give to the clergy that degree of importance which ultimately culminated in making them the great lords that we find them in the tenth century. To give an idea of the tenor of these documents, I will, however, quote a few lines from the earliest one that has come under my notice in Carlovingian times, namely a diploma of the year 782, issued to Geminiano II., bishop of Modena, and preserved in the archives of that city. Here we find that: "Nullus judex publicus ad causas audiendum, vel freda exigendum, seu mansiones aut paratas faciendum, nec fidejussiones tollendum neque hominibus ipsius episcopatus distringendum," etc. This is sufficient to show the character of exemption from secular jurisdiction.[90]

The next forward step in the advance of the bishops to temporal power was made probably about the time of Charles the Bald; though under his two immediate predecessors, Lothaire[91] and Lewis II.,[92] we already see indications of an extension of the quality of exemption to include freedom from the payment of all public dues and the bearing of all public burdens.[93] It was precisely the introduction of this element of exemption from public burdens which marked the change in the nature of the immunities granted from the time of Charles the Bald, down to the period when the element of jurisdiction and real temporal power was introduced under Guido and Berenger. Up to this time, the grounds on which similar charters had been sought had been protection from the oppression of the counts, and had resulted, as we have seen, in the granting of simple charters of protection which were of no very great significance. But now it is exemption from public burdens, etc., that is made prominent, in addition to a complete severance from all jurisdiction and control of the secular power of the _civitas_ in which the bishop's see and domains are situated. That this concession also was sought by the bishop on the plea of protection for his dependents from oppression and exaction, does not diminish its importance; for it is easy to see that the line which separates recognized right of protection from recognized right of jurisdiction is one easily effaced, and defense from the tyranny of a foreign power can with little difficulty be transformed into domination by the professed defender.

That this was the order of development consequent on these changes is proved by the temporal dominion gained by the bishops in the next century; and the steps of its growth marked by numerous immunities granted by Charles the Bald, Karloman[94] his successor, and Charles the Fat, the last of the Carlovingians in Italy. As a good example of the complete development of this advance gained by the bishops, I will mention a charter given by Charles the Fat to John, bishop of Arezzo, in the year 879, in which he confirms to him all the property and the rights of that see, and takes him under his protection, "sub immunitatis suae defensione": he then goes on to explain what this term meant, giving a full account of the extent to which a bishop's property was exempted from the jurisdiction of the _judex publicus_, and protected from the imposition of burdens and exactions.[95]

The next step in the growth of the episcopal power, and the most important of all, is the progress from exemption to privilege, to jurisdiction; and occurs after the return of the kingship of Italy to the hands of native kings.[96] It means the full development of the bishop into the temporal ruler, and as such belongs properly to the history of the tenth century, and consequently is beyond the limits of the present paper.

We have now considered individually and separately, in the course of their development, the different elements which, when combined and modified by the various changes described, contributed to form the solid foundation upon which the fabric of the future independent life of the cities was to be built. We have been dealing exclusively with institutions, and the manner in which their growth has been accomplished. For it is in the institutional life of a people, and in the change and development it undergoes, that are to be found those elements which form the basis for all future changes, whether simply in the form of its government or in the structure of its social system. If once a clear picture is gained of the structural parts which form the institutional framework of any particular development, and a truthful presentation of these forming principles is proved and established, a detailed account of the material expression of them is a matter of secondary importance.

I have not, in this paper, attempted to describe the actual condition of any particular municipality, or even presented a picture which could represent the material existence of the cities as a whole. Such a picture would only be a necessary part of a study of institutions when the city itself was the unit to be investigated, and not of one whose chief object is to prove that the city as such had no constitutional existence, but simply formed a part of another institutional unit. When we reach a period in which the city stands out as an object of study in itself, and when we do not have to trace its history only by learning that of other institutions which included and overshadowed it, then the practical life of the people within its walls becomes of the greatest importance, even to the smallest detail of civic law or city custom; and then, and not till then, begins what could properly be called a study of municipal institutions.